Partly allowed

In the matter of Starlite Infracon Private Limited [IA(I.B.C)/658 & 1471(KB)2020, IVN.P-8-9(KB)2021 & IA(I.B.C)-1025(KB)2021 in C.P. (IB)/676(KB)2019]

NCLT6 Jul 2022IA(I.B.C)/658 & 1471(KB)2020, IVN.P-8-9(KB)2021 & IA(I.B.C)-1025(KB)2021 in C.P. (IB)/676(KB)2019

Case brief

AI extract

What is this about?

The Tribunal held that various resolution professional applications remained infructuous due to the approval of a resolution plan, while dismissing intervention applications regarding home buyers. However, it determined that specific transfers to related parties were preferential transactions under the Insolvency and Bankruptcy Code, directing their return to the Resolution Professional.

What did the court decide?

Respondents directed to return specific amounts transferred within 2 years of CIRP to the Resolution Professional within two weeks.

In the matter of Starlite Infracon Private Limited… — Insolvency and Bankruptcy | NCLT (2022)

¶1

IN THE NATIONAL COMPANY LAW TRIBUNAL KOLKATA BENCH

¶2

KOLKATA

¶3

IA(I.B.C)/658(KB)2020

¶4

IVN.P/8(KB)2021

¶5

IVN.P/9(KB)2021 IA(I.B.C)/1471(KB)2020 IA(I.B.C)/1025(KB)2021

¶6

¶7

C.P. (IB)/676(KB)2019

¶8

IA(I.B.C)/658(KB)2020

¶9

In the matter of:

¶10

Section 19(2) of the Insolvency and Bankruptcy Code, 2016 read with Rule 11 of NCLT Rules, 2016;

AND

In the matter of:

Niraj Kumar Agarwal;

…Resolution Professional/ Applicant AND

¶15

In the matter of:

¶16

Starlite Infracon Private Limited;

¶17

…Corporate Debtor

¶18

Mudit Poddar

¶19

2. Manoj Kumar Poddar

¶20

...Respondents

¶21

IVN.P/8(KB)2020

¶22

Reliance Home Finance Limited, having its registered office at Reliance Centre, 6^th Floor, North Wing, Off Western Express Highway, Santacruz (East), Mumbai, Maharastra- 400055

¶23

….Financial Creditor

¶24

IN THE NATIONAL COMPANY LAW TRIBUNAL KOLKATA BENCH

¶25

IA(I.B.C)/658(KB)2020, IVN.P/8(KB)2021 IA(I.B.C)/1471(KB)2020, IA(I.B.C)/1025(KB)2021. IVN.P/9(KB)2021, IA (I.B.C)/177(KB)2021 in C.P. (IB)/676(KB)2019IA(I.B.C)

¶26

Versus

¶27

Starlite Infracon Private Limited, having its’ registered office at Plot No. FB-13, 1598, Rajdanga Main Road, Kolkata- 700017, West Bengal.

…Corporate Debtor.

And

In the matter of

Rubina Khatun, Wife of Safiuddin Mondal, resident of Kandarpur, Garia, Police Station: Narendrapur, South 24 Paraganas, West Bengal, PIN: 700084

¶32

…Applicant / Intervenor

¶33

And

¶34

In the matter of

¶35

Niraj Kumar Agarwal Interim Resolution Professional (IRP), IBBI / IPA-001 / P-00949 / 2017-2018/ 11569, P-887, Block-A, Ground Floor, Block-A, Laketown, Kolkata700089

¶36

IVN.P/9(KB)2021

¶37

Reliance Home Finance Limited, having its registered office at Reliance Centre, 6^th Floor, North Wingh, Off Western Express Highway, Santacruz (East), Mumbai, Maharastra- 400055

¶38

….Financial Creditor

¶39

Versus

¶40

M/s. Starlite Infracon Private Limited, having its’ registered office at Plot No. FB-13, 1598, Rajdanga Main Road, Kolkata- 700017, West Bengal.

…Corporate Debtor.

And

In the matter of

Page 2 of 16

IN THE NATIONAL COMPANY LAW TRIBUNAL KOLKATA BENCH

¶46

IA(I.B.C)/658(KB)2020, IVN.P/8(KB)2021 IA(I.B.C)/1471(KB)2020, IA(I.B.C)/1025(KB)2021. IVN.P/9(KB)2021, IA (I.B.C)/177(KB)2021 in C.P. (IB)/676(KB)2019IA(I.B.C)

¶47

Safiuddin Mondal, (PAN: BHCPM9357A) son of Farid Ali Mondal, resident of Kandarpur, Garia, Police Station: Narendrapur South 24 Parganas, West Bengal, PIN: 700084

¶48

…Applicant / Intervenor

¶49

And

¶50

In the matter of:

¶51

Niraj Kumar Agarwal Interim Resolution Professional (IRP), IBBI / IPA-001 / P-00949 / 2017-2018/ 11569

¶52

P-887, Block-A, Ground Floor, Block-A, Laketown, Kolkata- 700089, Email: [email protected], [email protected] Mobile: 9830016006

¶53

IA (I.B.C.)/ 1471 (KB) 2020

¶54

Reliance Home Finance Limited, having its registered office at Reliance Centre, 6^th Floor, North Wingh, Off Western Express Highway, Santacruz (East), Mumbai, Maharastra- 400055

¶55

….Financial Creditor

¶56

In the matter of

¶57

Starlite Infracon Pvt. Ltd. (In CIRP), having its office at Plot No. FB – 13, 1598, Rajdanga Main Road, Kolkata WB 700017

¶58

In the matter of

¶59

Niraj Kumar Agarwal, Resolution Professional of Starlite Infracon Pvt. Ltd. (In CIRP), residing at Swastik Apartment, 332/157, Jessore Road, Flat No. 3H, Kolkata- 700089.

¶60

…Applicant

¶61

Versus

¶62

Mudit Poddar, residing at Cl- 241, Sector-II Salt Lake P.S. Bidhangar-East, North 24 Parganas, Kolkata 700091.

¶63

Manoj Kumar, Poddar, residing at Cl-212, Sech Bhawan, Salt Lake P.S. Bidhangar-East, North 24 Parganas, Kolkata 700091; Also at 241, Sector-II Salt Lake P.S. Bidhangar-East, North 24 Parganas, Kolkata 700091;

¶64

Page 3 of 16

¶65

IN THE NATIONAL COMPANY LAW TRIBUNAL KOLKATA BENCH

¶66

IA(I.B.C)/658(KB)2020, IVN.P/8(KB)2021 IA(I.B.C)/1471(KB)2020, IA(I.B.C)/1025(KB)2021. IVN.P/9(KB)2021, IA (I.B.C)/177(KB)2021 in C.P. (IB)/676(KB)2019IA(I.B.C)

¶67

Ruchika Poddar Wife of Mudit Poddar, residing at Cl-241, Sector-II, Salt Lake P.S. Bidhangar-East, North 24 Parganas, Kolkata 700091;

¶68

Ruchira Poddar wife of Manoj Kumar Poddar, residing at Cl- 212, Sech Bhawan, Salt Lake P.S. Bidhangar-East, North 24 Parganas, Kolkata 700091;

¶69

Krishiv Poddar (Minor) Son of Mudit Poddar and Ruchika Poddar, having its address at Cl-241, Section-II, Salt Lake P.S. Bidhangar-East, North 24 Parganas, Kolkata 700091;

¶70

MAKP Developers Pvt. Ltd having its office 116/1/1, Mahatama Gandhi Road, Madhav Bhavan, 1^st Floor, Kolkata- 70007;

¶71

Starlite Construction Pvt. Ltd. having its registered office at 116/1/1, Mahatama Gandhi Road, Madhav Bhavan, 1^st Floor, Kolkata – 700007;

¶72

…Respondents

¶73

IA(I.B.C.)1025(KB)2021

¶74

Reliance Home Finance Limited, having its registered office at Reliance Centre, 6^th Floor, North Wingh, Off Western Express Highway, Santacruz (East), Mumbai, Maharastra- 400055

¶75

….Financial Creditor

¶76

Versus

¶77

Starlite Infracon Private Limited, having its’ registered office at Plot No. FB-13, 1598, Rajdanga Main Road, Kolkata- 700017, West Bengal.

…Corporate Debtor.

And

In the matter of

Sanwaj Mondal, son of Farid Ali Mondal, resident of Kandarpapur, Rajpur, Sonarpur, Garia, South 24 Parganas, West Bengal, PIN: 700084

¶82

…Applicant/Intervenor

¶83

In the matter of:

¶84

Niraj Kumar Agarwal Interim Resolution Professional (IRP), IBBI / IPA-001 / P-00949 / 2017-2018/ 11569

¶85

Page 4 of 16

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IN THE NATIONAL COMPANY LAW TRIBUNAL KOLKATA BENCH

¶87

IA(I.B.C)/658(KB)2020, IVN.P/8(KB)2021 IA(I.B.C)/1471(KB)2020, IA(I.B.C)/1025(KB)2021. IVN.P/9(KB)2021, IA (I.B.C)/177(KB)2021 in C.P. (IB)/676(KB)2019IA(I.B.C)

¶88

P-887, Block-A, Ground Floor, Block-A, Laketown, Kolkata700089, Email: [email protected], [email protected]

¶89

Coram:

¶90

Shri Rohit Kapoor, Member (Judicial)

¶91

Shri Harish Chander Suri, Member (Technical)

¶92

Appearances ( via hybrid mode)

¶93

For the Liquidator: Mr. Rahul Auddy, Advocate

¶94

Mr. Aditya Guptu, Advocate

¶95

For the suspended BoD: Ms. Sushmita Ghosh. Advocate

¶96

Order Reserved on :21.04.2022 Pronounced on : 06. 07.2022

¶97

COMMON ORDER

¶98

Per Rohit Kapoor, member (Judicial)

¶99

The Court convened via video conference today.

¶100

IA(I.B.C)/658(KB)2020

¶101

This is an application filed under section 19(2) of the Insolvency and bankruptcy Code (‘Code’) by Niraj Kumar Agarwal, (‘IRP’) against the suspended board of Starlite Infracon Private Limited (‘Corporate Debtor’), inter alia, praying for the following reliefs;

¶102

i. For passing orders under section 19(2) and19(3) of the Code and to direct the Respondents to provide list of documents to the Applicant as per the Schedule – I of the instant application.

¶103

ii. To direct the respondents to provide the applicant access to the website of the Corporate Debtor.

¶104

Order

¶105

However, in the light of the Resolution Plan approved by this Adjudicating

¶106

Page 5 of 16

¶107

IN THE NATIONAL COMPANY LAW TRIBUNAL KOLKATA BENCH

¶108

IA(I.B.C)/658(KB)2020, IVN.P/8(KB)2021 IA(I.B.C)/1471(KB)2020, IA(I.B.C)/1025(KB)2021. IVN.P/9(KB)2021, IA (I.B.C)/177(KB)2021 in C.P. (IB)/676(KB)2019IA(I.B.C)

¶109

Authority in IA(IBC)/177(KB)2021 , this application being IA(I.B.C)/658(KB)2020 stands infructuous, as dismissed

¶110

IVN.P/8(KB)2021 and IVN.P/9(KB)2021

¶111

The submissions in IVN.P/8(KB)2021 are tabulated below;

¶112

Application’s Content	RP Submission
INV.P/8/KB/2021 Applicant – Rubina Khatun- 1. On 03.04.2019 applicant purchased flat from CD and made a payment of Rs. 17,48,600/-	1. Applicant choose to move intervening application just to frustrate CIRP process 2. Allotment was already cancelled by erstwhile management before commencement of CIRP . 3. In the resolution plan under “cancelled home buyers” category
2. 3. Flat was cancelled on 31.01.2020 for nonpayment while applicant claim possession of the flat.	50% of the paid amount is approved as refundable by COC 4. The records of the corporate debtor show receipt of Rs. 10,28,600/- only. CANCELLATION BY CD:- The record of the corporate debtor shows that with effect from 1st February, 2020, the agreement of sale of flatwas cancelled due to non-payment of the balance amount by theRubina Khatunagainst the flat. (Pg No -57 of INV/8 of applicant)

¶113

The submissions in IVN.P/9(KB)2021 are tabulated below;

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Page 6 of 16

¶115

IN THE NATIONAL COMPANY LAW TRIBUNAL

¶116

KOLKATA BENCH

¶117

IA(I.B.C)/658(KB)2020, IVN.P/8(KB)2021 IA(I.B.C)/1471(KB)2020, IA(I.B.C)/1025(KB)2021. IVN.P/9(KB)2021,

¶118

IA (I.B.C)/177(KB)2021 in C.P. (IB)/676(KB)2019IA(I.B.C)

¶119

INV.P/	9/KB/2021 Applicant – Saffiuddin	1. Applicant choose to move
Monda	l-	intervening application just to frustrate CIRP process
1.	On 03.04.2019 applicant purchased flat from CD and made payment Rs. 14,50,000/-	2. Allotment was already cancelled by erstwhile management before commencement of CIRP .
2.	Flat was cancelled on 31.01.2020 for nonpayment while applicant claim possession of the flat and want to make balance payment.	3. In the resolution plan under “cancelled home buyers” category 50% of the paid amount is approved as refundable by COC 4. The records of the corporate debtor show receipt of Rs. 7,50,000/- only. CANCELLATION BY CD The record of the corporate debtor shows that with effect from 1st February, 2020, the agreement of sale of flatwas cancelled due to non-payment of the balance amount by Saffiuddin Mondalagainst the flat. (Pg No -48 of INV/8 of applicant)

¶120

ORDER in IVN.P/8(KB)2021 and IVN.P/9(KB)2021

¶121

However, in the light of the Resolution Plan approved by this Adjudicating Authority in IA(IBC)/177(KB)2021 , intervention applications being IVN.P/8(KB)2021 and IVN.P/9(KB)2021 stands infructuous, as dismissed.

¶122

IA(I.B.C)/1025(KB)2021

¶123

The submissions in IA(IBC)/1025(KB)2021 are tabulated below;

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Page 7 of 16

¶125

IN THE NATIONAL COMPANY LAW TRIBUNAL

¶126

KOLKATA BENCH

¶127

IA(I.B.C)/658(KB)2020, IVN.P/8(KB)2021 IA(I.B.C)/1471(KB)2020, IA(I.B.C)/1025(KB)2021. IVN.P/9(KB)2021,

¶128

IA (I.B.C)/177(KB)2021 in C.P. (IB)/676(KB)2019IA(I.B.C)

¶129

IA/1025/KB/2021 Applicant – Sanwaj Mondal	1. Applicant choose to move IA just to frustrate CIRP process
1. On 03.04.2019 applicant purchased flat from CD and made payment Rs. 11,09,750/-	2. Allotment was already cancelled by erstwhile management before commencement of CIRP .
2. Flat was cancelled on 31.01.2020 for non payment while applicant claim possession of the flat and want to make balance payment.	3. In the resolution plan under “cancelled home buyers” category 50% of the paid amount is approved as refundable by COC 4. The records of the corporate debtor show receipt of Rs. 4,79,750/- only.
	CANCELLATION BY CD The record of the corporate debtor shows that with effect from 31^stJanuary, 2020, the agreement of sale of flatwas cancelled due to non-payment of the balance amount by bySanwaj Mondalagainst the flat.
	(Pg No – 22 & 46 of INV/8 of applicant)

¶130

Order in IA(I.B.C)/1025(KB)2021

¶131

However, in the light of the Resolution Plan approved by this Adjudicating Authority in IA(IBC)/177(KB)2021 , intervention applications being IA(I.B.C)/1025(KB)2021 stands dismissed.

¶132

IA(I.B.C)/1471(KB)2020

¶133

9. This I.A. has been filed under section 43 and section 66 of the Code.

¶134

10. It is submitted that all the Respondents are related parties of the Corporate Debtor under section 5(24) as depicted in table below:-

¶135

	Name	Status / Relationship
R1	Mudit Poddar	Part of suspended Board of CD (son of R2
		and R4 and husband of R3)

¶136

Page 8 of 16

¶137

IN THE NATIONAL COMPANY LAW TRIBUNAL KOLKATA BENCH

¶138

IA(I.B.C)/658(KB)2020, IVN.P/8(KB)2021 IA(I.B.C)/1471(KB)2020, IA(I.B.C)/1025(KB)2021. IVN.P/9(KB)2021, IA (I.B.C)/177(KB)2021 in C.P. (IB)/676(KB)2019IA(I.B.C)

¶139

R2	Manoj Poddar	Part of suspended Board of CD (father of R1 and husband of R4)
R3	Ruchika Poddar	Wife of R1
R4	Ruchira Poddar	Wife of R2
R5	Krishiv Poddar	Minor son of R1 and R3
R6	MAKP Developers Pvt. Ltd.	Related party of CD, where R3 and R4 are the only Directors and also having
		common office with CD.
R7	Starlite Construction Pvt. Ltd.	Holding company of CD, where R1 and R2 are the Directors

¶140

Particulars of the transactions impugned, which are hit by sections 43 and/or 66 of

¶141

IBC are as follows:-

¶142

Sl.	Particulars		Allegation	Section	Amount	Page
				applicable		Nos. (IA 1471)
1.	R1– Rs. 15,22,	600/-	R1 is Director	Section 43	15,22,600/-	132
	transferred	by	of the CD
	CD bet	ween	amount paid
	5.4.2018	and	within 2 years
	13.2.2020	as	of CIRP
	alleged repayment	of	commencement
	unsecured l	oan.
2.	R2– Rs. 62,70,	576/-	R2 is Director of	Section 43	62,70,576/-	133
	transferred	by	the CD amount
	CD bet	ween	paid within 2

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Page 9 of 16

¶144

IN THE NATIONAL COMPANY LAW TRIBUNAL KOLKATA BENCH

¶145

IA(I.B.C)/658(KB)2020, IVN.P/8(KB)2021 IA(I.B.C)/1471(KB)2020, IA(I.B.C)/1025(KB)2021. IVN.P/9(KB)2021, IA (I.B.C)/177(KB)2021 in C.P. (IB)/676(KB)2019IA(I.B.C)

¶146

	3.4.2018 27.2.2020 alleged repayment unsecured l	and as of oan.	years of CIRP commencement
3.	R3– Rs. 82.75 transferred CD bet 3.5.2018 18.2.2010 alleged repayment unsecured l	lacs by ween and as of oan.	R3 wife of R1 amount paid within 2 years of CIRP	Section 43	82,75,000/-	134
4.	R4– Rs. 24,30, transferred CD bet 2.5.2018 28.8.2019 alleged repayment unsecured l Further Rs. 54, given direct	000/- by ween and as of oan. 804/- ly to	R2 wife of R1 amount paid within 2 years of CIRP	Section 43	24,30,000/-	135
	income authorities payment	tax for of

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Page 10 of 16

¶148

IN THE NATIONAL COMPANY LAW TRIBUNAL KOLKATA BENCH

¶149

IA(I.B.C)/658(KB)2020, IVN.P/8(KB)2021 IA(I.B.C)/1471(KB)2020, IA(I.B.C)/1025(KB)2021. IVN.P/9(KB)2021, IA (I.B.C)/177(KB)2021 in C.P. (IB)/676(KB)2019IA(I.B.C)

¶150

	personal income tax dues of R4. This amounts to fraudulently paying monies not actually due or payable by the CD and is thus, hit by section 66.
5.	R5– Rs. 5.80 lacs transferred by CD between 3.5.2018 and 24.5.2019 as alleged repayment of unsecured loan.	R5 is minor son of R1 amountpaid within 2 years of CIRP	Section 43	5,80,000/-	136
6.	R6– Rs. 28.85 lacs transferred by CD between 26.3.2018 and 30.9.2019 as alleged repayment of unsecured loan.	R6 is company in which R3 & R4 is director Amt paid within 2 years of CIRP	Section 43	28,85,000/-	137

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Page 11 of 16

¶152

IN THE NATIONAL COMPANY LAW TRIBUNAL KOLKATA BENCH

¶153

IA(I.B.C)/658(KB)2020, IVN.P/8(KB)2021 IA(I.B.C)/1471(KB)2020, IA(I.B.C)/1025(KB)2021. IVN.P/9(KB)2021,

¶154

IA (I.B.C)/177(KB)2021 in C.P. (IB)/676(KB)2019IA(I.B.C)

¶155

R7– Rs.1,22,49,000/-	Holding	Section 43
allegedly paid	company of	and
by CD between	CD, where R1	66
22.3.2018 and	and R2 are the
13.4.2020 as	Directors
against
“unsecured	Amount Rs.
loan”. Further,	1.22 Cr paid
since	within 2 years
incorporation a	and balance 94
total amount of Rs. 2.16 Crore	Lakhs before 2 yrs total paid
was transferred as evident from	Rs. 2.16 Cr
bank statement
and books of
accounts ref
page no 104 -
131 & page no
138. This is clearly
fraudulent and
hit by section 66. .

¶156

Page 12 of 16

¶157

IN THE NATIONAL COMPANY LAW TRIBUNAL KOLKATA BENCH

¶158

IA(I.B.C)/658(KB)2020, IVN.P/8(KB)2021 IA(I.B.C)/1471(KB)2020, IA(I.B.C)/1025(KB)2021. IVN.P/9(KB)2021, IA (I.B.C)/177(KB)2021 in C.P. (IB)/676(KB)2019IA(I.B.C)

¶159

The Bank Statements of the CD showing the aforesaid payments, are at pages 104132 . The transactions are also confirmed by R1 himself (see letter dated 9.9.2020 with enclosures at pages 78-103) . Surprisingly, there are also alleged loan confirmations dated 1.4.2020 (post commencement of CIRP) by the CD, without the knowledge or consent of RP ( pages 88 and 90 ).

¶160

The aforesaid transactions are hit and/or deemed to be hit by section 43, since they were made within the look-back period of 2 years and amount to transfer of property of the CD for the benefit of a creditor on account of an antecedent financial debt / liability, and the same has the effect of putting the respondents in a more beneficial position than they would have been in the event of distribution of assets under section 53 . The respondents failed to show that payment were made in ordinary course of business. Case ref: (2020) 8 SCC 401 [Anuj Jain v. Axis Bank] @ paragraphs 21-23

¶161

AFFIDAVIT IN REPLY:- Given by R1, R2 & R5

¶162

No reply received from R3, R4 ,R6 & R7

¶163

Brief Content of Reply:- Further in Para 4(d) Respondent has mentioned that prescribed period of 75 days expired on 23^rd November,2020 hence application is time barred. Further it is being claimed that payment is on account of refund of loan given by Respondents. NO REPLY HAS BEEN FILED BY OTHER RESPONDENTS

¶164

Rejoinder of RP:- Application made is well within time line provided under Regulation 35A of 2016 regulation as per detail given below:-

¶165

Sl	Particulars	Timeline	Date of
No			Compliance
1	Date of Commencement of CIRP	16/03/2020

¶166

Page 13 of 16

¶167

IN THE NATIONAL COMPANY LAW TRIBUNAL KOLKATA BENCH

¶168

IA(I.B.C)/658(KB)2020, IVN.P/8(KB)2021 IA(I.B.C)/1471(KB)2020, IA(I.B.C)/1025(KB)2021. IVN.P/9(KB)2021,

¶169

IA (I.B.C)/177(KB)2021 in C.P. (IB)/676(KB)2019IA(I.B.C)

¶170

2	Exclusion due to lockdownas per	25/03/2020
	Regulation 40C approved by Hon’ble NCLT, Kolkata vide order IA(IB) No. 661/KB/2020 dtd 14.09.2020 & IA/1422(KB)2020 dtd 07.01.2021 (Reference ANNEXURE-A pg no 13 -16 of Rejoinder)	30/09/2020 Total 191 days
3.	75 Days excluding period of Exclusion as referred in Sr.No 2 above	04/12/2020	15/08/2020
4.	115 days excluding period of Exclusion as referred in Sr.No 2 above	13/01/2021	15/10/2020
5	135 daysexcluding period of Exclusion as referred in Sr.No 2	02/02/2021	23/12/2020

¶171

Report in terms of Regulation 35A time line was submitted to IBBI on 23.10.2021 by email. Copy of the report enclosed with rejoinder as ANNEXURE-B (Page No- 17-19 of Rejoinder). Application made on 23.12.2021 copy of acknowledgement enclosed with rejoinder as ANNEXURE-C (Page No- 20 of

¶172

Rejoinder).

¶173

Application to adjudicating authority made within 115 days hence determination and application timelines are also adhered by the applicant.

¶174

The transfers are not in the ordinary course of business of the CD or the respondents and were not in good faith. CD has been under financial stress and

¶175

Page 14 of 16

¶176

IN THE NATIONAL COMPANY LAW TRIBUNAL KOLKATA BENCH

¶177

IA(I.B.C)/658(KB)2020, IVN.P/8(KB)2021 IA(I.B.C)/1471(KB)2020, IA(I.B.C)/1025(KB)2021. IVN.P/9(KB)2021, IA (I.B.C)/177(KB)2021 in C.P. (IB)/676(KB)2019IA(I.B.C)

¶178

there is no reason for CD to transfer such huge amounts to the respondents towards purported repayments of loans. The stands taken are clearly afterthought, contradictory and the transactions are designed to defraud the general body of creditors. In their reply also respondent failed to show that these transitions were in ordinary course of business.

¶179

ORDER

¶180

19. It may be noted that the transactions in question have taken place within the look back period of two years preceding the date of commencement of CIRP i.e. 16.03.2020. The transactions relate to 2018, 2019 and 2020.

¶181

20. On perusal of the record, it is apparent that the Corporate Debtor had entered into transactions with the Respondents that are preferential in nature. The Resolution Professional has formed an opinion and has taken steps to recover the loans given to the Respondent Nos. 1 and 2.

¶182

21. The Resolution Professional made a determination as to the nature of transactions. The Respondents have contended that the amount was returned to the Respondents for the loan availed by the Corporate Debtor at 15% per annum in the ordinary course of business.

¶183

22. What baffles us is that at a time, when the Corporate Debtor is undergoing a financial crunch, no prudent person or Board of Management would repay the loan amount to itself and its related party unless the Board of Management were of suspicion that the Corporate Debtor would dissolve or wind up soon and the related parties of the Corporate Debtor would not receive their fair share.

¶184

23. This is a case of preferential transactions which were entered by the Corporate Debtor and the related parties. The Respondents are directed to return the amounts as mentioned in the table in paragraph 11 to the Resolution Professional within two weeks from the date of this order.

¶185

24. In view of the above directions, IA(I.B.C)/1471(KB)2020 is disposed of.

¶186

25. The Registry is directed to send e-mail copies of the order forthwith to all the

¶187

Page 15 of 16

¶188

IN THE NATIONAL COMPANY LAW TRIBUNAL KOLKATA BENCH

¶189

IA(I.B.C)/658(KB)2020, IVN.P/8(KB)2021 IA(I.B.C)/1471(KB)2020, IA(I.B.C)/1025(KB)2021. IVN.P/9(KB)2021, IA (I.B.C)/177(KB)2021 in C.P. (IB)/676(KB)2019IA(I.B.C)

¶190

parties and their Counsel for information and for taking necessary steps.

¶191

26. Certified Copy of this order may be issued, if applied for, upon compliance of all requisite formalities.

¶192

Harish Chander Suri Rohit Kapoor Member (Technical) Member (Judicial)

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Member (Judicial)

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The order is pronounced on the 6^th day of July, 2022.

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Safura [LRA]/GGRB[LRA]